dismissed EB-2 Case: Quantitative Analysis

(b)(6)
DATE: 
IN RE: 
MAY 0 7 2015 
Petitioner: 
Beneficiary: 
FILE#: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
/'w( 1"iJ, 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition. The 
petitioner appealed the matter to the Administrative Appeals Office (AAO), and we dismissed the 
appeal on February 1, 2013. The petitioner filed a motion to reopen and reconsider our decision, and 
we reopened and affirmed the prior decision on August 15, 2013. The petitioner filed a second 
motion to reopen and reconsider, and we reopened the matter and affirmed our prior decision on 
May 9, 2014. The petitioner filed a third motion to reopen and reconsider, and we affirmed our prior 
decision on December 23, 2014. The petitioner has now filed a fourth motion to reconsider. 1 Our 
prior decision, dated December 23, 2014, will be reconsidered, a new decision will be entered, and 
the petition will remain denied. 
The Form I-140 identifies the petitioner as "Gold JRA Specialists." The petitioner seeks to employ 
the beneficiary permanently in the United States as an "Industrial Engineer/ Quantitative Analyst." 
The director's decision denying the petition concludes that the job offered does not meet the 
minimum requirements for classification as a member of the professions with an advanced degree. 
We affirmed the director's decision on appeal as well as our decisions regarding the petitioner's 
motions to reopen and reconsider. 
The procedural history in this case is documented by the record and incorporated into the decision. 
Further elaboration of the procedural history will be made only as necessary. 
We conduct appellate review on a de novo basis. 2 We consider all pertinent evidence in the record, 
including new evidence properly submitted upon appeal or motion. 
The petitioner requests classification of the beneficiary as an advanced degree professional pursuant 
to section 203(b )(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(2), which, 
in pertinent part, provides immigrant classification to members of the professions holding advanced 
degrees or their equivalent and whose services are sought by an employer in the United States. An 
advanced degree is a United States academic or professional degree or a foreign equivalent degree 
above the baccalaureate level. 8 C.F.R. § 204.5(k)(2). The regulation further states: "A United States 
baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive 
experience in the specialty shall be considered the equivalent of a master's degree." Id. 
I. PROCEDURAL HISTORY 
As required by statute, the petition is accompanied by an ETA Form 9089, Application for 
Permanent Employment Certification (labor certification), approved by the U.S. Department of 
Labor (DOL). 3 The priority date of the petition is August 21, 2011. 4 
1 Counsel asserts on motion that our previous decision constituted an erroneous decision through misapplication of law 
or policy and therefore qualifies for consideration as a motion to reconsider under 8 C.F.R. § 103 .5(a)(3). Therefore, the 
petitioner's motion is properly filed. 
2 See 5 U.S.C. 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would 
have in making the initial decision except as it may limit the issues on notice or by rule."); see also Janka v. U.S. Dept. of 
Transp., NTSB, 925 F.2d 11 47, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the 
federal courts. See, e.g., Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
3 See section 212(a)(5)( D) of the Act, 8 U.S. C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
Part H of the labor certification states that the offered position has the following m1mmum 
requirements: 
H.4. Education: Master's degree in "Industrial Engineering." 
H.5. Training: None required. 
H.6. Experience in the job offered: 36 months. 
H.7. Alternate field of study: "Business Administration or related field." 
H.8. Is there an alternate combination of education and experience that is acceptable? Yes. 
H.8-A. If Yes, specify the alternate level of education required: Other. 
H.8-B. If Other is indicated in question 8-A, indicate the alternate level of education required: 
"Combination of education and experience in lieu of a Master's degree." 
H.8-C. If applicable, indicate the number of years experience acceptable in question 8: "4." 
H.9. Foreign educational equivalent: Accepted. 
H.10. Experience in an alternate occupation: None accepted. 
H.12. Are the job opportunity's requirements normal for the occupation? Yes. 
H.l4. Specific skills or other requirements: Applicant must have a combination of education and 
experience equivalent to a Master's degree in Industrial Engineering, Business 
Administration, or a related field, with strong statistical background and analytical skills and 
a minimum of three years of experience in the financial industry. Excellent writing and 
communication skills are also necessary. (The three years of experience in the financial 
industry is a necessity of the business to ensure sufficient exposure to the financial services 
industry to enable the applicant to perform the required duties effectively. This experience 
may have been gained either as a part of the degree equivalency or separately. ) (The 4 years 
of experience in Block H.8-C. reduces to 2 years for a Bachelor's degree holder in any of the 
specified fields.) 
Part J of the labor certification states that the beneficiary possesses a Bachelor's degree in Industrial 
Engineering from the 
_ 
completed in 1998. The record contains a copy 
of the beneficiary's Bachelor's degree in Industrial Engineering and academic transcripts from the 
, issued in 1998. 
In the prior motion, the petitioner asserted that because the DOL has certified a minimum master's 
degree level position to USCIS, the instant position meets the minimum requirements for classification 
of the position as an advanced degree professional position and USCIS does not have the authority to 
determine otherwise. In our decision, dated December 23, 2014, we held that, independent of the 
labor certification process undertaken by DOL, USCIS has the authority to determine: 
(1) Whether the beneficiary qualifies for classification within the category requested 
under the Act; 
(2) Whether the beneficiary meets the terms of the labor certification for the classification 
requested under the Act; and 
(3) Whether the position offered as stated on the labor certification meets the 
requirements of the classification requested under the Act. 
4 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5( d). 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
We further held that the petitioner has not established that the posztwn offered meets the 
requirements of the advanced degree professional category or that the beneficiary qualifies for 
classification under the advanced degree professional category pursuant to section 203(b )(2) of the 
Act according to the terms of the labor certification. 
Counsel asserts on motion: (1) that the beneficiary qualifies for classification as an advanced degree 
professional; and (2) according to court's decision in Hoosier Care, Inc. v. Chertoff, 482 F.3d 987 (7th 
Cir. 2007), it is the DOL and not USCIS that has the authority to determine whether the position offered 
qualifies as an advanced degree professional position. 
II. LAW AND ANALYSIS 
1. Division of Authority between the DOL and US CIS in the Immigrant Visa Process 
In our previous decision, we cited SnapNames.com, Inc. v. Chertoff (SnapNames), No. CV 06-65-
MO, 2006 WL 3491005 (D. Or. Nov. 30, 2006) for the court's description of the employment-based 
immigrant petition process in cases requiring an underlying labor certification.5 The court described 
this process as follows: 
[T]he petitioner submits an application for certification to the DOL describing the job 
at issue and identifying the alien beneficiary. The petitioner also defines the 
"minimum education, training, and experience for a worker to perform satisfactorily 
the job duties." In issuing the certification, the DOL considers the job, as defined by 
the petitioner, and certifies that (1) "there are not sufficient workers who are able, 
willing, qualified ... and available at the time of application for a visa and admission 
to the United States and at the place where the alien is to perform such skilled ... 
labor," and (2) "the employment of such alien will not adversely affect the wages and 
working conditions of workers in the United States similarly employed." 8 U.S.C. § 
1182( a)(5)(A)(i). 
Once certified, the petitioner applies for a visa with [USCIS], submitting DOL's 
certification in support as required by the regulations. 8 C.F.R. § 204.5(k)(4) 
(advanced degree professionals); 8 C.F.R. § 204.5(1)(3)(i) (professionals, skilled 
workers and other workers). 6 It is then [US CIS's] responsibility to determine whether 
the alien is qualified for a visa under the applicable statute and regulations and under 
the terms of the certification. 8 U.S.C. § 1154(b); 8 C.F.R. § 204.5(1)(3)(ii)(A)-(D). 
(Emphasis added). 
SnapNames. com, Inc. , 2006 WL 3491005, at *4-5. Other federal courts have similarly articulated the 
division of authority between the DOL and USCIS. The court in Madany v. Smith, 696 F.2d 1008, 
1012 (D.C. Cir. 1983) concluded that "although the Act allocates a limited role to DOL, it vests 
5 We have modified this analysis slightly to include the regulations pertaining to advanced degree professionals under 8 
C.F.R. § 204.5(k)( 4) and professionals under 8 C.F.R. § 204.5(1)(3)(i). 
6 We have included the regulations pertaining to advanced degree professionals and professionals here. 
--------------------------------------- ----·,.···· 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
primary responsibility for implementation with [USCIS]." The court in N. Am. Indus., Inc. v. 
Feldman, 722 F.2d 893, 898 (1st Cir. 1983), similarly held that "the decision to grant or deny a 
petition to obtain a preferential immigration classification is one that is within the discretion of 
[USCIS]." Relying in part on Madany, 696 F.2d at 1008, the Ninth Circuit stated: 
[I]t appears that the DOL is responsible only for determining the availability of 
suitable American workers for a job and the impact of alien employment upon the 
domestic labor market. 
K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The Ninth Circuit, citing K.R.K. 
Irvine, Inc., 699 F.2d at 1006, similarly stated: 
The Department of Labor (DOL) must certify that insufficient domestic workers are 
available to perform the job and that the alien's performance of the job will not 
adversely affect the wages and working conditions of similarly employed domestic 
workers. !d. § 212(a)(14), 8 U.S.C. § 1182(a)(14). 7 
Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984). The court in 
Madany v. Smith, 696 F.2d at 1012-1013, stated further: 
Given the language of the Act, the totality of the legislative history, and the agencies' 
own interpretations of their duties under the Act, we must conclude that Congress did 
not intend DOL to have primary authority to make any determinations other than the 
two stated in section 212(a)(14). 8 
These cases demonstrate that the DOL and USCIS have two distinct purposes in the employment­
based petition process: the DOL's primary responsibility is to protect U.S. workers whereas 
USCIS's primary responsibility is to determine whether an employment-based petition should be 
approved under the classification requested in accordance with the Act and USCIS regulations. 
On motion, the petitioner asserts that the holdings of the cases cited above predate the PERM9 
program and do not accurately assess the current division of authority between the DOL and USCIS. 
However, the enactment of the PERM program did not affect the statutory framework regarding the 
division of authority between the DOL and USCIS. The statute regarding the responsibilities of the 
DOL was originally enacted in 1952 at section 212(a)(14) of the Act/0 which stated, in pertinent 
part, the following: 
7 As stated above, the current citation is section 212(a)(5)(A). 
8 Based on revisions to the Act, the current citation is section 212( a)(5)(A). 
9 New United States Department of Labor (DOL) regulations concerning labor certifications went into effect on March 
28, 2005. The new regulations are referred to by the DOL by the acronym PERM. See 69 Fed. Reg. 77325, 77326 (Dec. 
27, 2004). The PERM regulation was effective as of March 28, 2005, and applies to labor certification applications for 
the permanent employment of aliens filed on or after that date. 
10 
See section 212(a)(14) of the Act, 8 U.S.C. § 1182(a)(14)(1952), June 27, 1952, c. 477, Title II, ch. 2, § 212 , 66 Stat. 
18 2. 
(b)(6)
Page 6 
NON-PRECEDENT DECISION 
Aliens seeking to enter the United States for the purpose of performing skilled or 
unskilled labor [are excludable], if the Secretary of Labor has determined and 
certified to the Secretary of State and to the Attorney General that (A) sufficient 
workers in the United States who are able, willing, and qualified are available ... to 
perform such skilled or unskilled labor, or (B) the employment of such aliens will 
adversely affect the wages and working conditions of the workers in the United States 
similarly employed. 
This section was amended in 1976 and contained virtually the same language. 11 It was further 
amended in 1990 and moved to section 212(a)(5)(A)(i) of the Act with only minor changes from the 
1976 version. 12 Specifically, section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i), 
currently in effect, states that the authority of the DOL regarding employment-based visa petitions is 
to certify: 
(1) That there are not sufficient workers who are able, willing, qualified (or equally 
qualified in the case of an alien described in clause (ii)) and available at the time 
of application for a visa and admission to the United States and at the place where 
the alien is to perform such skilled or unskilled labor, and 
(2) That the employment of such alien will not adversely affect the wages and 
working conditions of workers in the United States similarly employed. 
The responsibility allocated to the DOL in the employment-based visa petition process prior to and 
after the enactment of PERM regulations has remained the same. Therefore, the conclusions in the 
cases cited above regarding this division of authority between the DOL and USCIS are still 
applicable. While the PERM regulations did provide additional steps that must be taken in the filing 
of a labor certification, this did not change the division of authority between the DOL and USCIS. 
a. The DOL Sets the Content of the Labor Certification. 
The petitioner cites Hoosier Care, Inc. v. Chertoff, 482 F. 3d 987 (ih Cir. 2007) at length, which will 
be discussed in more detail below. The petitioner states that Hoosier Care demonstrates that we have 
taken out of context Madany and other cases that address the division of authority between the DOL 
and USCIS and that we have selectively interpreted the holding of Madany. The court in Hoosier 
Care cited Madany, 696 F.2d at 1015, for the proposition that "the DOL bears the authority for 
setting the content of the labor certification and [USCIS] cannot impose job qualifications beyond 
those contemplated therein." The petitioner also cites Grace Korean United Methodist Church v. 
Chertoff, 437 F.Supp.2d 1174, 1179 (D.Ore.2005), which stated "If any agency has the power to 
define the job qualifications set forth in a labor certification, it is the DOL, the agency responsible 
for reviewing and adjudicating the labor certification." We agree with these points, name! y that the 
DOL has the authority to "set the content of the labor certification" (Madany, supra, at 1015) and to 
11 
See section 212(a)(14) of the Act (1976), PL 94-571 (HR 14 535), PL 94-571, October 20, 1976, 90 Stat 2703. 
12 
See section 212(a)(5)( A)(i) of the Immigration Act of 1990, Act of Nov. 29, 1990, Pub. L. No. 101-649, 104 Stat. 
4978. 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
"define the job qualifications set forth on the labor certification" (Grace Korean, supra, at 1179). 
However, we do not agree with the petitioner's assertion that "the case law does not support the 
Service's contention that it has the authority to interpret portions of a certified labor certification." 
As will be discussed below, the DOL's authority to "set the content" and "define the terms" of the 
labor certification does not preclude USCIS from interpreting the terms of the labor certification. In 
fact, the Act and the regulations pertaining to USCIS require it to interpret the terms of the labor 
certification. 
The DOL sets the content of the labor certification (as provided by the employer) by certifying that 
the terms stated by the employer meet the requirements of 20 C.P.R. § 656, yet it is USCIS that 
interprets these terms to determine whether that content of the labor certification meets the required 
classification as it pertains to both the position and the beneficiary, discussed further below. Once 
the labor certification is certified and submitted with the Form 1-140, Petition for Alien Worker, 
users must then examine "the language of the labor certification job requirements" in order to 
determine what the petitioner must demonstrate about the beneficiary's qualifications. Madany, 696 
F.2d at 1015. The only rational manner by which USCIS can be expected to interpret the meaning of 
terms used to describe the requirements of a job in a labor certification is to "examine the certified 
job offer exactly as it is completed by the prospective employer." Rosedale Linden Park Company v. 
Smith, 595 F. Supp. 829, 833 (D.D.C. 1984) (emphasis added). USCIS's interpretation of the job's 
requirements, as stated on the labor certification must involve "reading and applying the plain 
language of the [labor certification]." !d. at 834 (Emphasis added). This demonstrates at the outset 
that USCIS interprets the plain language of the labor certification to determine, as will be discussed 
further below, whether the position offered as stated on the labor certification qualifies under the 
classification requested and whether the beneficiary meets the terms of the labor certification and 
qualifies under that classification. 
b. USCIS Determines Whether a Position Offered Meets the Requirements for 
Classification under the Employment-Based Category Requested. 
The regulation pertaining to visa petitions filed for "advanced degree professionals " under 8 C.F.R. 
§ 204.5(k)(4)(i) demonstrate that USCIS has the authority to determine whether (1) the beneficiary 
and (2) the position offered each qualify for classification under this particular category .13 
The regulation at 8 C.P.R. § 204.5(k) states the following, in pertinent part: 
(k) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. 
13 We note that the regulations for professionals and skilled workers contain this same framework which requires USCIS 
to determine whether the beneficiary and the position offered meet the requirements for the classification requested. For 
example, the regulation at 8 C.F.R. § 204.5(1)(3)(i) regarding the "professional worker" category states that "[e]very 
petition under this classification must be accompanied by an individual labor certification from the Department of Labor 
.. . The job offer portion of an individual labor certification ... must demonstrate that the job requires the minimum of a 
baccalaureate degree. " Regarding the skilled worker regulations at 8 C.F.R. § 204.5(1)(4), see the discussion below 
pertaining to the court's holding in Hoosier Care, Inc. v. Chertoff, 482 F.3d 987 (ih Cir. 2007). 
(b)(6)
Page 8 
NON-PRECEDENT DECISION 
(3) Initial evidence. The petition must be accompanied by documentation showing 
that the alien is a professional holding an advanced degree ... 
(4) Labor certification or evidence that alien qualifies for Labor Market Information 
Pilot Program-
(i) General. Every petition under this classification must be accompanied by an 
individual labor certification from the Department of Labor, by an application for 
Schedule A designation (if applicable), or by documentation to establish that the alien 
qualifies for one of the shortage occupations in the Department of Labor's Labor 
Market Information Pilot Program .. .. The job offer portion of the individual labor 
certification, Schedule A application, or Pilot Program application must demonstrate 
that the job requires a professional holding an advanced degree or the equivalent or 
an alien of exceptional ability. 
(Emphasis added). This language demonstrates that the regulation at 8 C.P.R. § 204.5(k)(3) requires 
that USCIS determine whether the beneficiary qualifies as an advanced degree professional, and the 
regulation at 8 C.P.R. § 204 .5 (k)(4)(i) requires that USCIS determine whether the position offered 
meets the requirements for an advanced degree professional position. Therefore, USCIS has the 
authority to determine whether the beneficiary and the position offered qualify for the classification 
request ed. 
On motion, counsel cites Hoosier Care, Inc. v. Chertoff, 482 P.3d 987 (7 1h Cir. 2007), for the 
premise that the DOL has the authority to determine whether a position offered qualifies under the 
classification requested. The court in Hoosier Care addressed the "skilled worker" regulation at 8 
C.P.R. § 204.5(1)( 4) and held that "the determination of what kind of training is required to classify 
an alien as a 'skilled' worker is made by the Labor Department upon consideration of the submission 
by the alien 's prospective employer." 482 P.3d at 989. The court further concluded that USCIS only 
determines whether the alien meets the requirements of the labor certification. /d. As indicated 
above, we agree with part of the court's holding in Hoosier Care, citing Madany at 1015, that the 
DOL is responsible for setting the content of the labor cer tification. However, Hoosier Care stands 
for the limited interpretation of what constitutes "relevant" post-secondary education under the 
skilled worker regulation and has no applicability to the facts of the current case. 
Under the Supreme Court's holding in Nat'! Cable & Telecommunications Ass'n v. Brand X Internet 
Servs. (Brand X), 54 5 U.S . 967, 982-84, 125 S. Ct. 2688, 2700-01, 162 L. Ed. 2d 820 (2005), we 
reach a different interpretation from the holding of Hoosier Care regarding the division of authority 
between the DOL and USCIS. 14 Under Brand X, we interpret the regulation at issue in Hoosier 
Care, 8 C.P.R. § 204 .5 (1)(4), in pertinent part, as follows: 
14 In Brand X, the court held that, consistent with "Chevron deference," an agency charged with interpreting a statute that 
is silent or ambiguous as to a particular issue may choose a different construction than a court "since the agency remains 
the authoritative interpreter (within the limits of reason) of such statutes." !d. The holding of Brand X allows for Chevron 
deference to an agency's interpretation of a statute or regulation even if a court's decision precedes that of an agency. !d. 
at 982-83 (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-844, and n. 11, 
------------------------------------- ---··� 
(b)(6)
Page 9 
NON-PRECEDENT DECISION 
The determination [by USCIS] of whether a worker 1s a skilled or other worker will 
be based on the requirements of training and/or experience placed on the job by the 
prospective employer, as certified by the Department of Labor. 
(Brackets and emphasis added). This means that that even though the DOL certifies the terms of the 
labor certification for the position offered, as placed on the job by the employer, it is the 
responsibility of USCIS to determine whether those terms meet the requirements of the classification 
requested. This interpretation of 8 C.P.R. § 204. 5( 1)(4) for petitions filed in the "skilled worker" 
category is consistent with the regulations for the "advanced degree professional" and "professional" 
categories, 8 C.P.R . §§ 204. 5( k)(4)(i) and 204. 5( 1)(3)(i), respectively, which similarly give USCIS 
the authority to determine whether the position offered meets the requirements for the specific 
classification requested. 15 Theref ore, de spite the court's decision in Hoosier Care, the totality of the 
regulatory framework demonstrates that USCIS has the authority for determining whether a position 
offered meets the qualifications for the category requested. Nothing in the regulations at 20 C.P.R . § 
65 6, pertinent to labor certifications, gives the DOL the authority to determine whether the job offer 
portion of the labor certification meets the classification requirements. 
c. USCIS Determines Whether the Beneficiary Meets the Terms of the Labor 
Certification and Qualifies for the Classification Requested Under the Act. 
The regulations pertaining to employment-based immigrant petitions under 8 C.P. R. § 204 .5 
specifically state what documentation must be submitted to USCIS with the Form I-140 to 
demonstrate that the beneficiary qualifies for classification under the particularly category requested. 
See 8 C.F.R . § 204 .5(k)(3) (for "advanced degree professionals," relating to the instant case); see also, 
e.g., 8 C.F.R. § 204.5(1)(3)(C) (for "professionals"); 8 C.F.R. § 204. 5(1)(3)(ii)(B) (for "skilled 
10 4 S.Ct. 2778). As noted in our prior decision, the Act is silent as to whether the DOL or USCrS has the authority to 
determine whether a position offered meets the necessary requirements under employment-based immigrant petition 
classifications. The "skilled worker" regulation at 8 C.F.R. § 204.5(1)( 4) that the court addressed in Hoosier Care 
regarding the division of authority between USCrS and the DOL is ambiguous because it states the basis for the 
determination of whether a worker is a skilled or other worker, but it does not specifically state which agency will make 
that determination. Therefore, Chevron deference should be given to our interpretation of this regulation. See 
Christensen v. Harris Cnty., 529 U.S. 576, 588, 120 S. Ct. 16 55, 1663, 146 L. Ed. 2d 621 (2000) (citingAuer v. Robbins, 
519 U.S. 452, 46 1, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997), in which the court held that "an agency's interpretation of its 
own regulation is entitled to deference."). We note that the next phrase of the "skilled worker" regulation, 8 C.F.R. § 
204.5(1)( 4), states that this determination will be based on the requirements of the labor certification "as certified by the 
Department of Labor," which demonstrates that USCIS will make this determination based upon the already certified 
labor certification, after the DOL's review is completed. 
15 As noted above, the pertinent language of 8 C.F.R. § 204.5(k)(4)(i) for "advanced degree professionals" states that 
"[ e ]very petition under this classification must be accompanied by an individual labor certification from the Department 
of Labor . . . the job offer portion of the individual labor certification . . . must demonstrate that the job requires a 
professional holding an advanced degree or the equivalent or an alien of exceptional ability. The regulation for 
"professionals" at 8 C.F.R. § 204.5(1)(3)(i) states that "[e]very petition under this classification must be accompanied by 
an individual labor certification from the Department of Labor . . . the job offer portion of an individual labor 
certification . . . must demonstrate that the job requires the minimum of a baccalaureate degree." (Emphasis added). 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
workers"); and 8 C.F.R. § 204.5( 1)(3)(ii)(D) (for "unskilled (other) workers").16 We note that none of 
the inquiries assigned to the DOL under section 212(a)(5) (A)(i) of the Act, or the regulations 
implementing these duties under 20 C.P.R. § 656, involve a determination as to whether the alien is 
qualified for a specific immigrant classification. "There is no doubt that the authority to make 
preference classification decisions rests with INS. The language of section 204 cannot be read 
otherwi se." Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983) (Citing Castaneda­
Gonzalez v. INS, 564 F.2d 417, 429 (D.C. Cir. 1977)). 
We note that the DOL may assess the benefi ciary's qualifications in ensuring that U.S. workers are 
not disadvantaged, but this does not supersede the statutory and regulatory requirements given to 
USCIS to determine whether the ben eficiary qualifies for the classification requested. The court 
stated in Madany v. Smith, 696 F.2d at 1012, that even though an inquiry into an alien's skills or 
qualifications is not one of the inquiries expressly allocated to DOL, "this does not mean that DOL 
cannot, or does not, under take analysis of an alien's qualifications as it performs its statutory 
functions." (Emphasis added). The court further stated: 
Indeed, DOL may gauge an alien's skill level in evaluating the effect of the alien's 
employment on United States workers. The fact that DOL may find such an analysis 
useful, however, does not forecl ose INS from considering alien qualifications in the 
preference classification decision. 
Relying in part on Madany, 696 F.2d at 1008, the Ninth Circuit stated: 
It does not appear that the DOL's role extends to determin ing if the alien is qualified 
for the job for which he seeks sixth preference status. That determination appears to 
be delegated to the INS under section 204(b ), 8 U.S. C. § 1154(b ), as one of the 
determ inations incident to the INS's decision whether the alien is entitled to sixth 
preference status. 
K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). Theref ore, USCIS, and not the 
DOL, determines whether the beneficiary is qualified for the employment-based classification 
requested. 
In addition to meeting the requirements of the classification requested, the petitioner must also 
establish that the ben eficiary satisfied all of the educational, training, experien ce and any other 
requirements of the offered position by the priority date. 8 C.F.R . § 103.2(b )(1), (12). See Matter of 
Wing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); see also Matter of Katigbak, 14 
I&N Dec. 45 , 49 (Reg. Comm. 1971). Even though the labor certification may be prepared with the 
beneficiary in mind, USCIS has an independent role in deter mining whether the be neficiary meets the 
labor certification requirements. See SnapNames. com, Inc. , 2006 WL 3491005 , at *7 (D. Or. Nov. 30, 
16 Although the instant petition is filed under the "advanced degree professional" category, the regulations relating to 
"skilled workers," "professional," and "unskilled (other) workers" are cited throughout this decision as additional 
support of the authority of USCIS in adjudicating employment-based immigrant petitions. 
(b)(6)
NON-PRECEDENT DECISION 
Page 11 
2006). Thus, USers has the authority to determine whether the ben eficiary qualifies for 
classification under the act and meets the terms of the labor certification. 
Theref ore, the DOL is responsible for setting the content of the labor certification, certifying that the 
position offered will not disadvantage potential u.s. workers and users interprets the plain 
meaning of that language to determine whether: (1) the position qualifies for classification under the 
Act; and (2) the be neficiary meets the terms of the labor certification and is qualified for the 
classification requested. 
d. The Position Offered as Stated on the Labor Certification Does Not Meet the 
Requirements for Classification under the Advanced Degree Professional Category. 
Section 203(b)(2) of the Act, 8 U.S.C. § 11 53 (b)(2), provides immigrant classification to members of 
the professions holding advanced degrees. See also 8 e.F.R. § 204.5 (k)(1). 17 An "advanced degree" is 
defined in 8 C.F.R. § 204.5(k)(2) as: 
[A]ny United States academic or professional degree or a foreign equivalent degree 
above that of baccalaureate. A United States baccalaureate degree or a foreign 
equivalent degree followed by at least five years of progressive experien ce in the 
specialty shall be considered the equivalent of a master 's degree. If a doctoral degree 
is customarily required by the specialty, the alien must have a United States doctorate 
or a foreign equivalent degree. 
The regulation at 8 C.F.R. § 204.5(k)(3)(i) states that a petition for an advanced degree professional 
must be accompanied by: 
(A) An official academic record showing that the alien has a United States advanced 
degree or a foreign equivalent degree; or 
(B) An official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree, and evidence in the form of 
letters from current or former employer(s) showing that the alien has at least five 
years of progressive post-baccalaureate experience in the specialty. 
Theref ore, an advanced degree professional petition must establish that the be neficiary is a member of 
the professions holding an advanced degree, and that the offered position requires, at a minimum, a 
professional holding an advanced degre e. Further, an "advanced degree" is a U.S. academic or 
professional degree (or a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a 
foreign equivalent degree) followed by at least five years of progressive experience in the specialty. See 
8 C.F.R. § 204.5(k)(4)(i). Both of these requirements describe the minimum requirements for 
classification under section 203(b )(2) of the Act. Therefore, users has the obligation to dete rmine 
17 We note that these regulations regarding USCIS to determine whether the position offered meets the requirements for 
the classification requested were promulgated prior to the PERM regulations as part of the Immigration Act of 1990, 
Public Law 101-649, November 29, 1990 (IMMACT). 
(b)(6)
NON-PRECEDENT DECISION 
Page 12 
whether both the primary and alternate requirements, as minimum requirements for the position offered, 
meet the terms of the Act for classification as an advanced degree professional. 
As stated above, the labor certification states the following primary and alternate requirements of the 
position offered: 
Primary Education and Experience 
Requirements 
1. (Part H.4) Master 's degree m 
"Industrial Engineering" or (Part H. 7) 
Master's degree m "Business 
Administration or related field" and 
2. (Part H.6 ) 36 months of experience in 
the job offered. 
Alternate Education and Experience 
Requirements 
1. (Part H.8-B) "Combination of education 
and expenence m lieu of a Master's 
degree." (This is stated again in Part 
H.14 as "a combination of educ ation and 
expenence equivalent to a Master's 
degree m Industrial Engineering, 
Business Administration, or a related 
field ... and three years of experience in 
the financial industry." 
2. (Part H.8 -C, which specifically asks for 
the number of years experience 
acceptable as part of the combination of 
ed ucation and experience): "4" [years of 
experience]. 
Part H. l4 states that "the 4 years of 
experience in Block H.8-C. reduces to 2 
years for a Bachelor's degree holder in 
any of the specified fields ." 
In our previous decisions, we held that these minimum requirements do not meet the minimum 
requirements for classification of the position under the advanced degree professional category. 
On motion, the petitioner asserts that the director has focused on certain parts of the labor 
certification while ignoring the rest in det ermining that the position offered does not fit within the 
category sought. Specifically, the petitioner states that "H.4 through H.7 were the only blocks the 
[USCIS] needed to concern itself with since the DOL had certified by law (the force of the 
regulation) that the information contained in blocks H.8 through H.14 were equivalent to H.4 
through H. 7." At issue here, therefore, is whether the DOL's certification that the alternate 
requirements are "substantially equivalent" to the primary requirements also means that the DOL has 
certified that the position offered requires, as a minimum, an advanced degree. As will be shown 
below under 20 C.P.R.§ 656. 17(h), the DOL's certification regarding the substantial equivalence of 
the primary and alternate requirements relates to whether these requirements are "nmmally required 
for the occupation." The regulation at 20 C.P.R. § 656. 17(h) states, in pertinent part: 
(b)(6)
Page 13 
NON-PRECEDENT DECISION 
(h) Job duties and requirements. (1) The job opportunity's requirements, unless 
adequately documented as arising from business necessity, must be those normally 
required for the occupation and must not exceed the Specific Vocational Preparation 
level assigned to the occupation as shown in the O*NET Job Zones. 
( 4 )(i) Alternative experience requirements must be substantially equivalent to the 
primary requirements of the job opportunity for which certification is sought. 
This demonstrates that when DOL certifies that the position's alternative and primary requ irements 
are substantially equivalent, this relates only to whether the job opportunity's requ irements are 
normal for the occupation, which is addressed in Part H.12 of the labor certification. Therefore, if the 
DOL determines that the alternate experience requirements are substantially equivalent to the 
primary job requirements, this means that DOL is satisfied that the job requirements are "normally 
required for the occupation" and the petitioner is not required to de monstrate business justification 
for requirements that are above normal to the DOL. The purpose of this requirement is to enable the 
DOL to ensure that U.S . workers are not disadvantaged by alternate requirements that are unduly 
tailored to the be neficiary. Thus, the determination by the DOL regarding whether the alternate 
requirements are substantially equivalent to the primary requirements does not prevent USCIS from 
concluding that the overall minimum requirements for the position, including both the primary and 
the alternate requirements, do not meet the minimum requirements for the classification requested in 
the immigrant visa petition. As noted above, the DOL regulations at 20 C.F.R. § 65 6.17 do not state 
anything about certifying a particular position under a particular immigrant visa classification. 
In ascertaining whether the position offered qualifies for classification as an advanced degree 
professional position, USCIS must ensure that both the primary and alternate requirements of the 
position offered meet the requirements of a professional holding an advanced degree or the 
equivalent. If the position offered states minimum requirements for the position offered that are 
below the minimum requirements for classification as an advanced degree professional position, the 
position offered does not meet the requirements of 8 C.P.R. § 204 .5(k)(4)(i). Neither of the 
requirements in Part H.8-C or Part H.14 require at least a professional degree above a baccalaureate 
or a baccalaureate followed by at least five years of progressive experience in the specialty. !d. 
Theref ore, the language in Parts H.8 -C and H.14 demon strate that the petitioner is willing to accept 
less than an advanced degree for the proffered position and the position offered cannot be classified 
as an advanced degree professional position. 
The petitioner cites a USCIS memorandum 18 that states the following regarding the ed ucational and 
experience requirements in advanced degree professional cases: 
18 
See the Memorandum from Michael D. Cronin, Acting Associate Commissioner, Office of Programs, and William R. 
Yates, Deputy Executive Associate Commissions, Office of Field Operations, "Educational and Experience 
Requirements for Employment-Based Second Preference (EB-2) Immigrants," HQ 70/6.2, AD00-08, March 20, 2000. 
(b)(6)
Page 14 
NON-PRECEDENT DECISION 
The terms, "MA," "MS," "Master 's Degree or Equivalent" and "Bachel or's degree 
with five years of progressive experience," all equate to the educational requirements 
of a member of the professions holding an advanced degree. The threshold for 
granting EB-2 classification will be satisfied when any of these terms appear in block 
14 .19 
We agree with the statements in this memorandum, but we also note that the petitioner has not cited 
the full context of this section. The next two paragraphs of this memorandum state the following: 
It is also important to read [the labor certification] as a whole. In particular, if the 
education requirement in block 14 includes an asterisk (*) or other footnote, the 
information included in the note must be considered in determining whether the 
educational requirement, as a whole, demonstrates that an advanced degree or the 
equivalent is the minimum acceptable qualification for the position. 
As long as the minimum requirement for the job offered is a master 's degree or the 
equivalent, the position should be found to require a member of the professions 
holdi ng an advanced degree. This is true even if several variations of this requirement 
are stated. 
In this case, we have read the labor certification as a whole, which includes the specific details in 
Parts H.8 and H.1 4 of the labor certification, which state that the petitioner would accept unspecified 
education coupled with four years of experience, or a bachelor 's degree and two years of exper ience. 
These terms of the labor certification state minimum requirements that do not meet the minimum 
requirements for classification of the position as an advanced degree professional position. We also 
note that this memorandum cited by the petitioner states, "[I]f the job itself does not require an 
advanced degree professional, the petition must be denied, even if the alien ben eficiary actually is an 
advanced degree professional." As demonstrated above, the labor certification states requirements 
that do not meet the minimum requirements for classification under section 203(b )(2) of the Act, and 
the petition was properly denied by the director for this reason. 
The petitioner asserts on motion that the four years in Part H.8-C, and the reduction from four years 
to two years in Part H.14, refers to Specific Vocational Preparation (SVP), 20 not years of experience. 
The petitioner states that "the entry in H.8-C is written (as required by DOL procedures) in years of 
SVP where four years of SVP equates to a Master 's level of education." However, a review of the 
plain language of the labor certification indicates that these numbers relate to "experience" not SVP. 
Part H.8-C asks "If applicable, indicate the number of years experience acceptable in question 8." 
(Emphasis added). And the petitioner 's language in Part H. l4 states that "the 4 years of experience 
in Block H.8-C reduces to 2 years for a Bachelor 's degree holder in any of the specified fields" 
(emphasis added), which clearly indicates that this refers to years of "experience," not SVP. 
19 The petitioner notes that this refers to the Form ETA 750, the predecessor labor certification form to the ETA Form 
9089. 
20 
The definition of Specific Vocational Preparation, as defined in Appendix C of the Dictionary of Occupational Titles, 
is "the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
Further, as discussed above, the regulation at 20 C.F.R. § 656.1 7(h) states that the "job opportunity's 
requirements ... must be those normally required for the occupation and must not exceed the 
Specific Vocational Preparation level assigned to the occupation as shown in the O*NET Job 
Zones." Thus, the DOL's determination of SVP is to ensure that job opportunity's requirements are 
normal for the position of fered and not unduly tailored to the benef iciary. 
Here, the plain meaning of the labor certification states minimum requirements that are below the 
threshold for an advanced degree professional position as stipulated in 8 C.F.R. § 204 .5 (k)(4)(i), 
which states that the job offer portion of the labor certification must require, at a minimum, an 
advanced degree. As demonstrated above, we have viewed the labor certification in its totality and 
given meaning to each of the plain terms of the labor certification. Theref ore, we conclude that the 
position does not constitute an advanced degree professional position. 
e. The Beneficiary Meets the Terms of the Labor Certification. 
In our previous decisions, we determined that, beyond the decision of the director, the petitioner had not 
established that the beneficiary met the required terms of the labor certification to qualify for the 
position offered. 21 On motion, the petitioner asserts that the ben eficiary meets the terms of the labor 
certification and qualifies for the position offered based upon his bachel or's degree and employment 
experience. We accept that the record demonstrates that the benef iciary meets the terms of the labor 
certification. 
22 
the facility needed for average performance in a specific job-w orker situation." This definition further states that 
"specific vocational training includes: vocational education, apprenticeship training, in-plant training, on-the-job 
training, and essential experience in other jo bs." A more precise way of referring to the common denominator in SVP as 
we did in our prior decision would be that SVP puts education, training and experience into a common denominator of 
"lapsed time" for a typical worker to "learn the techniques, acquire the information, and develop the facility" for average 
�erformance in the job. /d. 
1 We may deny a petition that fails to comply with the technical requirements of the law even if the director does not 
identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 
2d 10 25, 10 43 (E.D. Cal. 2001), aff d, 345 F.3d 683 (9lh Cir. 2003). 
22 Because the position offered does not qualify as an advanced degree professional position, it is irrelevant whether the 
beneficiary individually qualifies as an advanced degree professional. As noted above, the USCIS Memorandum cited by 
the petitioner states that "Decid ing whether the position requires an advanced degree professional is independent of 
whether the alien beneficiary is himself an advanced degree professional. If the job itself does not require an advanced 
degree professional, the petition must be denied, even if the alien beneficiary actually is an advanced degree 
professional." See Memorandum from Michael D. Cronin and Willia m R. Yates, "Educational and Experience 
Requirements for Employment -Based Second Preference (EB-2) Immigrants," HQ 70/6.2, AD00-08, March 20, 2000. 
Therefore, for the reasons stated above, the position offered does not constitute an advanced degree professional 
position, and it is unnecessary for us to reach the issue of whether the beneficiary individually qualifies as an advanced 
degree professional. 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
III. CONCLUSION 
In summary, it is USCIS and not the DOL that has the authority to determine whether: (1) the 
position qualifies for classification under the Act; and (2) the ben eficiary meets the terms of the 
labor certification and is qualified for the classification requested. The petitioner has not 
demonstrated that the position offered meets the requirements of the advanced degree professional 
category. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely 
with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 
128 (BIA 2013). Here, that burden has not been met. 
ORDER: The previous decision of the AAO, dated December 23, 2014 is affirmed. The 
petition remains denied.